Lazar v. TD General Insurance Company, 2017 ONSC 1242 (CanLII)

In motions to exclude one party from another party’s discovery, the onus is on the party seeking the exclusion order to demonstrate that there is a risk that evidence will be tailored.

Date Heard: February 7, 2017 | Full Decision [PDF]

In Lazar, the plaintiffs were spouses whose house, along with its contents, was completely destroyed in a fire. The defendant sought to exclude the plaintiffs from each other’s discovery, arguing that their credibility was at issue and that there was a risk that the plaintiffs would tailor their evidence to match each other’s. The Court held that the onus is on the party seeking exclusion to demonstrate that exclusion is necessary to meet the ends of justice. The Court recognized that there has been a “divergence of the authorities” on whether the defendant must prove that the plaintiffs will likely tailor their evidence, or whether establishing that there is just a risk of tailoring is sufficient to meet the test.

The Court concluded that it is not always necessary that a party prove that it is likely that evidence will be tailored or parroted, as it would be an impossible standard in most cases. Rather, the party must only establish a risk, based on factors such as common interest, representation by the same lawyer, and prejudice, that evidence will be tailored:

In my view, where credibility of co-parties with the same interest will be the central issue at the trial, an exclusion order will attenuate the risk of a co-party unconsciously tailoring his or her evidence in a desire to achieve consistency. It will also allow the party seeking exclusion to test the reliability and credibility of the evidence of each of the co-parties and, in particular, test their independent recollection of the facts in issue, untainted by the prior knowledge of the questions they will likely be asked and the answers given by their co-party. As the Appellant put it, this is the only opportunity for the Appellant to explore and challenge the Respondents’ evidence independently. This is an important consideration given the purposes for conducting examinations for discovery, which in many respects are quite different from cross-examination of a party at trial before the trier of fact. (para 48).

 

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Written by

Gillian attained an Honours Bachelor of Arts degree in English Literature from Queen’s University in 2011, receiving the Roscoe R. Miller Award and the Arts 1915 Price for academic excellence. She received her Juris Doctor from Western University in 2014 and was placed on the Dean’s Honour List.

Prior to joining Bogoroch & Associates LLP, Gillian articled at a full-service firm in London, and was called to the Bar in 2015. She has been published in The Advocates’ Journal and participated in the Gale Cup Moot, and is a member of the Canadian Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.